Sleepwalking into an SDT civil burden of proof

The SRA has used the fraud taskforce to push its agenda – and the government has let it.

Now, I have a ready-made excuse for not knowing what’s going on in the legal world. After four weeks off playing daddy day care, I could probably express my burning fury at non-wheeled people using lifts, and make a decent argument for Mr Tumble to be a prime-time TV regular.

But even those with their nose to the grindstone on legal matters could be forgiven for missing what could be a pretty fundamental change in treating solicitors alleged to have stepped out of line.

Some months ago, the government-created insurance fraud taskforce made a series of recommendations, in general urging solicitors, insurers and claims management companies to work together and clean up rogue elements of the personal injury sector.

The taskforce said it also heard concerns from the Solicitors Regulation Authority about its enforcement and fining powers, which are out of sync with its equivalents in the claims management and financial services sectors.

While the Solicitors Disciplinary Tribunal has unlimited fining powers and considers cases on the criminal standard of proof, the SRA can fine a law firm just £2,000.

Last month, justice minister Lord Faulks said the government accepts each recommendation. That will presumably include greater fining powers and reviewing the standard of proof.

While the SRA's request for a lower standard of proof for tribunal prosecutions is not new, there is now a real prospect of it being granted.

This should worry the profession. If a solicitor’s livelihood is at stake, surely the SRA should have to prove beyond reasonable doubt they are guilty of the allegations thrown at them? (And of course, in the case of a fraud allegation as addressed here, that would be a criminal matter anyway.)

This major shift in policy has piggybacked on an issue that has little or nothing to do with insurance fraud

It is difficult to dismiss the idea that the SRA has acted opportunistically here to push through its agenda by hanging onto the coat tails of a distracted government.

The SRA’s chief executive Paul Philip says he was ‘pleased’ by the government's support. I’ll bet he was.

What this means, in practice, is that the SRA will be able to save money on investigations knowing it does not need to work as hard to secure a ‘conviction’. The profession should fight it every step of the way. It feels as if we have sleepwalked into a major shift in policy, piggybacking on an issue that has little or nothing to do with insurance fraud.

Does it matter? Perhaps not. Perhaps solicitors will be happy to see less of their PC fees spent on SRA prosecutions. But you’d better hope the SRA never knocks on your door, because it could be a lot easier to throw the book at you in future.